Human Resource Blog

That depends. This is an interesting problem, and we do not really have enough information to make a final decision. But, we can identify the issues involved. This question reflects the truth that employees often do not request FMLA leave until it is too late. Very simply put, FMLA does not excuse poor performance. It does not provide any grace period when the employee is at work, but not held to the usual performance standards. An employee who is on FMLA leave is not at work. An employee who is at work, is not permitted to do slipshod work or have other performance issues (like tardiness) and use FMLA to excuse them.

First of all, the three issues here are FMLA leave, tardiness and reasonable accommodation. As you probably know, FMLA entitles a qualified employee to take up to 12 weeks of unpaid job-protected leave during a 12 month period. FMLA protects an employees job — temporary disability often does not.

Employees normally have until 2 days after an absence to request that it be counted as FMLA. And, FMLA can be used sporadically or intermittently in some cases, including sleep disorders or narcolepsy. Suppose this employee was 2 hours late on Aug. 18, and her doctor recommended placing her on FMLA full-time beginning Aug. 19. The employee could request FMLA leave for the two hours on Aug. 18. Basically, what she is doing is beginning her FMLA leave one day earlier. She would still have to provide a physicians certification that this is a serious helath condition that requires time off. In this case, the first day of leave would be intermittent.

A 2008 change to the FMLA regulations require employees to follow the usual reporting procedures for FMLA absences. So if the employee was supposed to call to say that she would be late on Aug 18, and did not, that may be a problem. This requirement is waived in some cases, such as when an employee has a heart attack or stroke on the way to work. It is not clear if this would be one of those cases.

The employer would likely argue that tardiness is a separate issue. An employer can legally take any action against a worker on FMLA, that they would have taken, if the worker was not on FMLA. The employer will probably point out that many people with Narcolepsy or sleep disorders still manage to come to work on time. So the two may not be related. Again, being on FMLA before or after a date doesn\\\’t excuse poor performance. Employers have every right to discipline or even fire an employee on FMLA, as long as they are not being fired BECAUSE they are on FMLA. Suppose Ted likes to party and frequently comes in late without calling. He has been warned in the past that if he is tardy one more time, he will be terminated. Ted is scheduled to start FMLA for heart surgery on Friday. On Thursday, Ted comes in late without calling, because he has a hangover. The employer would be completely justified in firing Ted.

There is also an issue of whether the emloyer would be obligated to permit the employee to be tardy as a reasonable accommodation for a disability. We do not really have enough information to determine if this employee has a disability under the EEOC definition, which is pretty strict. If she does, and she asked the employer for leeway regarding reporting time in the past, that may qualify as a reasonable accommodation under ADA, the Americans with Disabilities Act. The employee does not have to use the words \\\”reasonable accommodation\\\” in order for the ADA to apply. However, the employer has the right to require medical certification of the disability.

Going out on a limb here (and I am sure our readers will let me know if there are any exceptions by posting comments!) I am going to say that 1099 contractors are not entitled to unemployment in any state. By definition, a 1099 worker is an independent contractor, not an employee. Technically, a 1099 worker is self-employed. Unlike other employers, independent contractors do not pay unemployment tax, and therefore are not entitled to unemployment benefits.

Some companies in the past have tried to mis-classify employees as independent contractors who were paid on a 1099, to avoid various wage and tax issues. But assuming that the worker is genuinely an independent contractor, then he or she is not entitled to unemployment.

Yes. California employers with 5 or more workers must give employees up to 4 months of unpaid, job-protected pregnancy disability leave. This leave is in addition to any unpaid leave under FMLA or CFRA, so an employee may be entitled to 4 months of disability, plus 12 weeks of FMLA. Employees on pregnancy disability are guaranteed the same job when they return and can request that guarantee in writing from the employer. Pregnancy disability leave is only valid during the period that the employee is certified by her doctor as unable to work. Any company that provides longer disability leave for other medical conditions, must also provide the same benefit for pregnant workers. Employees on pregnancy disability leave must give the employer as much advanced notice as possible — 30 days notice is preferable.

The California paid family leave program allows employees to take up to 6 weeks off to care for a newborn or a family member who is ill. Under this program, nearly every worker in the state is entitled to benefit payments during the leave. However, you are correct that the law does not require a small employer (with less than 50 full-time and part-time workers total) to reinstate the employee.

CFRA, which is the state law that provides benefits similar to the federal FMLA, applies to state and local government employees regardless of size. It also applies to businesses and non-profits with 50 or more workers.

All California employers must post notices about the various types of family leave available in the state. In addition, if they have employee handbooks, those handbooks must include information about employee leave required by law.

Read more about the CFRA at: http://www.dfeh.ca.gov/about/cfraDescription.aspx

Read more about paid family leave here: http://www.dol.gov/esa/whd/state/fmla/ca.htm

Read more about the pregnancy disability law here: http://www.dfeh.ca.gov/publications/publications.aspx?showPub=17

Obviously it is not a best practice in the HR field for an employer to offer paid vacation, but refuse to allow an employee to use it. However, it may be legal. The Massachusetts Minimum Fair Wage Law does not require employers to offer paid sick leave or paid vacation. Employers who do offer those benefits can set any policies they like regarding them. However, usually an employee who is terminated must be paid for earned vacation time.

It is very common for employers to approve the timing of vacation in advance, to make sure that there are enough workers to get the job done. It is very uncommon for an employee with earned vacation time to be told that she cannot use it, ever. That pretty much defeats the purpose of offering vacation time, and it is not a reasonable policy. But unless the employer is applying this in a way that discriminates against a worker based on race, color, sex, religion, pregnancy, or age, it is probably not illegal.

The best bet for this employee would be for her to volunteer to train someone else to do the critical parts of her job. Another option would be for the company to hire an employee from a temporary service to fill in while the worker is on vacations. If the employeeis willing to forego the vacation time, she could offer to be paid extra in lieu of taking the time off. Many employees in this situation would be tempted to tell their boss \\\”I am going on vacation 6 weeks from now. I have already bought my plane ticket, and if my vacation request is denied, unfortunately I will have to quit.\\\” The employee would need to be willing to follow through on that threat, though. The positive side is, if the employee quits, she is most likely entitled to payment for her vacation time. This is enforced by the Massachusetts office of the Attorney General.

No, the Illinois company would not be required to pay this worker for any unused vacation time. This employee had one week of vacation time after one year, and used it. He quit before he had earned any additional vacation time.

The policy clearly states that the employee earns 2 weeks of vacation after 2 years — not 1 week after 18 months and an additional week after 24 months. That means if the employee quits one day shy of the 2-year mark, he does not earn any vacation time for the last year. The policy further states that vacation time is fully earned as of January 1 — meaning if the employee quit on December 31, he would have no vacation time.